Short Reads

Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

Belgian Court of Cassation annuls decision prohibiting pharmacists fr

Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

01.08.2018 BE law

On 7 June 2018, the Belgian Court of Cassation, ruled that a decision of the Pharmacists Association Appeals Council (Appeals Council) prohibiting pharmacists from using Google Adwords to offer over-the-counter (OTC) products violated Belgian competition law because the Appeals Council did not sufficiently justify why such a prohibition was necessary for health reasons. The Appeals Council must now issue a new decision.

The Pharmacists Association (Orde van Apothekers - Ordre des Pharmaciens) is a professional association of pharmacists. Membership is mandatory partly to ensure that ethical and moral standards are maintained in the profession.

In the case at hand, the Appeals Council held that using Google Adwords for OTC products (i) lured customers into buying pharmacy products, (ii) resulted in customers not being able to access better care within their immediate geographical location and (iii) amounted to a "commercial exaggeration"  contrary to the principles of honour and dignity, which lie at the core of the profession. The Appeals Council also held that the responsible distribution of medicine requires personal contact with pharmacists, which is displaced by the use of Google Adwords.

The Court of Cassation held that the decision of the Appeals Council violated competition law. It confirmed the applicability of competition rules to pharmacists, noting that despite their social role, pharmacists are involved in exchanging goods or services and are therefore 'undertakings' subject to competition law. In addition, the Court concluded that the Pharmacists Association is also subjected to competition law, even though it pursues a statutory and not an economic objective.

The  Court considered that the Appeals council decision was based on the material interests of the pharmacists and general notions on the way the supply of medicine should be organised economically. Through its decision the Appeals council restricted competition without providing specific reasoning why the complainant would – through the use of Google Adwords for OTC products – endanger the public interest in terms of public health or the ethical standards of the profession.

This article was published in the Competition Law Newsletter of August 2018. Other articles in this newsletter:

  1. European Court of Justice dismissed Orange Polska’s appeal in abuse of dominance case
  2. General Court underlines importance of Commission's duty to state reasons
  3. General Court dismisses appeals by investor against power cable cartel fine
  4. Google receives a second record fine of EUR 34 billion for imposing restrictions on Android device makers
  5. European Commission issues a new Best Practices Code for State aid control
  6. District Court in the Netherlands rules on limitation periods in CRT case
  7. Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB

Team

Related news

18.02.2019 BE law
Plan-MER voor Vlaams windturbinekader? Raad voor Vergunningsbetwistingen te rade bij Europa

Articles - Het wordt stilaan een traditie van de Belgische rechter om het Hof van Justitie te bevragen over de milieueffectenbeoordeling en -rapportage (MER). Na de Raad van State en het Grondwettelijk Hof is het de beurt aan de Raad voor Vergunningsbetwistingen. In een tussenarrest van 4 december 2018 heeft de Raad voor Vergunningsbetwistingen aan het Hof van Justitie een lijst met prejudiciële vragen gesteld over de plan-MER-plicht van het Vlaamse kader voor de uitbating van windturbines. Mogen we ons verwachten aan een juridische saga "d'Oultremont pt.II"?

Read more

07.02.2019 NL law
Follow-on cartel damages claim dismissed: don't bury courts under paper work

Short Reads - A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, detailed and uncluttered information showing (i) which party purchased (ii) which products from (iii) which manufacturer for (iv) which amount, preferably with copies of the relevant agreements.

Read more

18.02.2019 NL law
Brexit and data protection: preparing for a 'no-deal'

Short Reads - As it stands, the UK will exit the European Union at midnight on 29 March 2019. Therefore, businesses within the UK, or with trade relations with the UK, would be best advised to assume that a no-deal Brexit is inevitable. The exchange of personal data  within the EU is governed by the General Data Protection Regulation (GDPR). In a no-deal Brexit, the GDPR will cease to be applicable in the UK upon its EU exit.

Read more

07.02.2019 NL law
The need for speed in mergers is no reason to ignore rights of defence

Short Reads - On 16 January 2019, the European Court of Justice clarified the procedural guarantees the European Commission needs to provide to merging parties during merger reviews. According to the Court of Justice, the General Court (GC) had rightly annulled the Commission's decision to prohibit the merger of UPS and TNT. UPS's right of defence had been infringed because the Commission had failed to share the final version of the econometric model with UPS before adopting its prohibition decision.

Read more

07.02.2019 NL law
The ACM follows EU approach in its first pharmaceutical merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently reviewed its first merger between two pharmaceutical companies. In its conditional clearance of Aurobindo's acquisition of certain European Apotex assets, the ACM followed the European Commission's approach in assessing the merger's impact on competition. Companies will welcome the news that pharma mergers will be reviewed in a similar fashion, irrespective of whether the ACM or the European Commission conducts the review.

Read more

07.02.2019 EU law
Digitisation and competition law: past, present and future

Short Reads - It is nearly time for the European Commission to reveal its course of action in digitisation and competition law. Feedback from a public consultation and the recent conference on 'Shaping competition policy in the era of digitisation' together with the upcoming expert panel's report on the future challenges of digitisation for competition policy are likely to shape the Commission's course of action.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring